Twitter Rejects Prosecutors' Subpoena For a User's Data Without Warrant

Sparrowvsrevolution writes "In defense of user privacy, Twitter filed a motion (PDF) yesterday in a New York state court asking a judge to block a subpoena that would force the company to turn over the data of one of its users, Malcolm Harris. Harris was arrested in an Occupy Wall Street protest on the Brooklyn Bridge in October for 'disorderly conduct.' The company's lawyers claim that the subpoena violates the fourth amendment and Twitter's terms of service, which says that users' tweets belong to them and thus can't be handed over to law enforcement without their consent."

Comments

Get a Warrant

[Local ID10T]

But they will just come back with a warrant and make it 'difficult' for twitter.

No. that will not make it difficult for Twitter. That will protect Twitter.

Complying with a warrant provides legal grounds for Twitter to act. Giving out information without one opens Twitter up to lawsuits.

Re:Get a Warrant

[Anonymous Coward]

It's not the *correct* way to get information, though.

A person can be forced by subpoena to testify. They can be forced to produce their own documents, or documents they created for others. They cannot be forced by subpoena to provide other people's documents that the other people wrote for themselves. That requires a warrant, which has a higher standard.

Re:Sounds nice

[Local ID10T]

Subpoenas are issued by the clerk of the court at the discretion of the attorneys involved.

Warrants are issued by judges.

Re:Half right

[Americano]

Because the user has deleted all of his tweets before February 2012.

The prosecution believes that his tweets (including those deleted) will contradict his "anticipated defense" - specifically, that he was induced or forced to step onto the roadway by police, rather than stepping out onto the roadway of his own volition, and obstructing traffic. For instance, if they can show he tweeted a photo of himself and some other protesters dancing around in the roadway minutes before he was arrested, it sort of torpedoes the "The police threw me into the street!" defense.

The reasoning the court is using in supporting the subpoena (by rejecting the defendant's motion to invalidate it) is that the records are akin to bank records - they are *about* the user, but the user has neither possession nor a "proprietary" interest in those records - in other words, the records belong to the bank, and so a subpoena is sufficient for the bank to turn over records about the defendant. Given Twitter's terms of service (granting them a worldwide irrevocable license to reproduce, present and display... etc. etc.... your tweets) and the precedent of bank records, the judge has ruled that the defendant has no standing to challenge the validity of the subpoena.

You can read the full order here, and it goes into fairly deep detail about the issue, and is a fairly straightforward read.

Re:Sounds nice

[oxdas]

First, per the Twitter terms of service, all communication is the property of the user and NOT Twitter. Twitter is arguing that it can't surrender what it doesn't own without a warrant. Think of it like this. I open a safe deposit box at my local bank. If the government wants access to property in the box, then is a subpoena to the bank enough? Twitter is in essence claiming they are like the bank; a repository and conduit, nothing more. (for safe deposit boxes, a subpoena will get you the paperwork about the box, but not inside it)

Secondly, Twitter is saying that the government needs a warrant for this information under the Fourth Amendment.

Third, Twitter is saying that if New York prosecutors want access to Twitter information, they need to file in Twitter's home state of California.

There is a lot of unsettled law in moving from the physical to the digital world. The government is arguing that many rights from the physical world don't translate to the digital one, Twitter disagrees.

Re:Sounds nice

[Americano]

And the actual motion explains some pretty compelling reasons why the subpoena went forward:

1) That Mr. Harris had to agree to Twitter's terms of service to have an account;
2) That the terms of service grant Twitter the following:

By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).

The essential argument is that since the user is granting Twitter that license to his tweets, the user has no "proprietary" (ownership) interest in the tweets, because by posting, he specifically gives up his right to prevent Twitter from doing anything they wish with that tweet he's submitted. In essence, they conclude that he's "given away" his tweet to Twitter via that license, and that he therefore has no standing to claim that it is "his property" which may not be disclosed by Twitter without his permission.

Re:Sounds nice

[Qzukk]

The FBI has nothing to do all day long but assemble files on people who are not suspected of nything.

http://emptywheel.firedoglake.com/2011/03/26/are-95-of-people-investigated-under-new-guidelines-innocent-but-entered-into-database/

They obviously have time to spare on ...

a report of a suspicious car that included no license plate number. Such tips are entered into its computer system even if there is no way to follow up on them.

Check, your move.